Effects of the Racial Makeup of Juries
Compiled by Alicia Arman, Avery Cummings, Kezia Osunsade, Julian Ross, Starlin Shi
Introduction: In part because of the prosecutor’s peremptory challenges, Curtis Flowers’s juries were either all-white or predominantly white. The Petitioner’s legal question, whether DA Evans violated the Supreme Court’s 14th Amendment prohibition on race-based peremptory challenges during jury selection to create an all-white jury, hinges on a research question: What effect, if any, do all-white juries have on the outcome of cases like Mr. Flowers’ (capital cases with defendants of color)? What effect, if any, do racially diverse juries have on the same cases?
Two quick introductions to the case can be found here:
The Legal Issue
In Flowers v. Mississippi, Curtis Flowers will challenge the Mississippi Supreme Court’s failure to find a Batson violation by the prosecutor at his sixth criminal trial. Batson v. Kentucky, 476 U.S. 79 (1986) disallows the striking of prospective jurors on the basis of race. Flowers will argue that the Mississippi Supreme Court failed to consider the prosecutor’s history of racial discrimination in jury selection in evaluating the Batson claim, and that, if they had, the Court would have found discrimination.
Batson v. Kentucky, a landmark Supreme Court case, holds that the Equal Protection Clause forbids prosecutors from challenging potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable to impartially consider the State's case against a black defendant. Batson v. Kentucky, 476 U.S. 79 (1986). This outcome is commonly regarded as a triumph as well as a cultural benchmark: it coined the now-colloquial terms “Batson rule” and “Batson violation,” and seemingly signaled a much-needed overhaul of trial practices.
The Equal Protection Clause of the Fourteenth Amendment bars the exclusion of jurors on the basis of race. Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 868 (2017) (citing Strauder v. West Virginia, 100 U.S. 303 (1879). For a defendant, the jury serves as a “vital check against the wrongful exercise of power by the state,” Pena-Rodriguez, 137 S. Ct. at 859, and for the community at large, the jury creates an impression of fairness and legitimacy within the criminal justice system. Powers v. Ohio, 499 U.S. 400, 413 (1991). As the jury is to be “a criminal defendant’s fundamental ‘protection of life and liberty against race or color prejudice,’” McCleskey v. Kemp, 481 U. S. 279, 310, 107 S. Ct. 1756, 95 L. Ed. 2d 262 (1987) (quoting Strauder, supra, at 309, 25 L. Ed. 664), permitting racial prejudice in the jury system damages the jury’s fair decision-making and the perception of the jury as fair within the community, Pena-Rodriguez, 137 S. Ct. at 868. Further, racial discrimination in the jury system is harmful to wrongfully excluded prospective jurors, as the exclusion is an “assertion of their inferiority” by the legal system. Strauder, 100 U.S. at 308.
The Facts
To determine how federal courts were sidestepping Batson, Jeffrey Brand examined several federal district court cases for how they apply Supreme Court preemptory challenge jurisprudence; it explains how lawyers get around the Court’s prohibition of race-based preemptory challenges. In Flowers, District Attorney Doug Evansused some of these tactics to circumvent the Court’s command in Batson. He is not alone in deploying these tactics to ensure a racially discriminatory jury selection process: in 1994, Brand explained that this technique “is consistent with the federal judiciary's deemphasis on the first stage of Batson's methodology. That is, circuit courts are increasingly focusing on the proffered neutral explanation without even deciding whether a prima facie case exists. Thus, before April 1990, the federal courts took this route in seventeen of 120 cases (14%). After April 1990, however, neutral reasons were considered in thirty-six of 120 (30%) cases despite the fact that no determination had been made with respect to the existence of a prima facie case.” Jeffrey S. Brand, The Supreme Court, Equal Protection, and Jury Selection: Denying that Race Still Matters, 1994 Wis. L. Rev. 511, 588–89 (1994). This finding mirrors the Petitioner’s analysis of the prosecutor’s jury selection techniques. Brief for Petitioners at 39-53.
More recently, in 2018, a study in North Carolina found that “prosecutors removed nonwhite jurors at about twice the rate they did white jurors.” Ronald F. Wright et. al., The Jury Sunshine Project: Jury Selection Data as a Political Issue, 2018 U. Ill. L. Rev. 1407, 1426 (2018). This finding is consistent with Mr. Evans’ behavior across all four of Mr. Flowers’ jury trials: in Flowers I, 77% of the 97 qualified potential jurors were white and 23% were Black, and the final jury was comprised of all white jurors. Brief for the Petitioner at 4. In Flowers II, out of 49 qualified potential jurors, 78% were white and 22% were Black; after “Evans used peremptory strikes to remove each black panelist,” the jury was comprised of “11 white members and one black member seated by judicial mandate.” Id. at 6-7. In Flowers III, where “[t]hree hundred prospective jurors completed ques- tionnaires, of whom 126 (42%) self-identified as black and 161 (54%) self-identified as white” and 54 (17 black and 28 white) were eventually tendered, Evans used all 15 of his judicially allotted peremptory strikes to remove Black panelists. Id. at 8-9. This resulted in a jury of 11 white jurors and 1 Black juror “seated after the State ran out of peremptory challenges.” Id.
For a step-by-step analysis of the jury selection process used in Flowers IV, please see this link: How did Curtis Flowers end up with a nearly all-white jury?
Research Findings Concerning the Effects of the Racial Composition of Juries
Social science indicates that diverse juries deliberate longer, consider more facts, make fewer incorrect facts, correct themselves more, and have the benefit of a broader pool of life experiences and experience to draw upon so they can better understand the evidence. White jurors are more likely to self-monitor and thus be more careful in their decision making in a diverse jury. Further, diverse juries are less likely to give death sentences, perhaps because “minority presence on a jury allows the group to understand and appreciate the different life experiences that different racial identities have with the criminal justice system. This leads the jury as a whole to perform their fact-finding tasks more effectively by helping eliminate or lessen individual biases or prejudices.” See American Bar Association, Lack of Jury Diversity: A National Problem with Individual Consequences However, the benefits of having a diverse jury are lessened when the minority juror(s) feel like they must serve as the “token” representative for their entire community. Id. (“diverse juries had longer deliberations, discussed more case facts, made fewer inaccurate statements, and were more likely to correct inaccurate statements… People of different races—akin to people with varied economic statuses, social hierarchies, sexual orientations, or national origins—consider and evaluate the same information in different ways and often arrive at different conclusions.”).
More Perfect: Object Anyway
Jeff Robinson, director for the ACLU Center for Justice, however, notes that while Batson v. KY was a “big deal” that brought “initial elation,” this excitement was quickly tempered with “a strong dose of reality.” A close look at the insights that social science theory and research may provide into this issue. More Perfect is an audio miniseries on the Supreme Court, and this episode discusses the world post-Batson regarding racial bias in the context of jury selection.
In a discussion on the Batson rule, Robinson specifically asserts that Batson stands to prevent “deliberate racial discrimination.” Id. In recognition of this somewhat narrower interpretation, Rameswaram notes that prosecutors immediately started training and teaching one another on how to circumvent the Batson rule, shortly after it came into being. Id. Specifically, Post-Batson prosecutors have learned to cite “race neutral” reasons for excluding jurors. These race-neutral reasons seemingly take full advantage of the inherent difficulty involved in proving racial bias. Id. For example, in an interview with Bryan Stevenson, founder and executive director of the Equal Justice Initiative, Stevenson recalls being in Atlanta during 1986, where he worked at the Southern Prisoners’ Defense Committee as a defense attorney. During a trial, a prosecutor used all of his peremptory strikes to remove blacks from the jury. After invoking Batson to challenge the prosecutor’s decisions, the court concluded that the prosecutor’s reasoning to strike one particular black juror “because she looked just like the defendant (a black male)” was indeed a race neutral decision. This moment pushed Stevenson to conclude that Batson only stood to make the jury-selection process “a lot more entertaining.” Id.
The episode later offers these particular notable statistics:
- in the state of Washington, there have been 46-50 Batson challenges post-Batson decision, and among those, only one reversal. Id.
- The state of TN has not reversed a single case under Batson. Id.
- In many counties in America, the diversity of juries has not increased very much at all: (For more in-depth discussion concerning the studies referenced below, please see this NPR discussion);
- A 2003 study of 390 felony jury trials prosecuted in Jefferson Parish, La., found that black prospective jurors were struck at three times the rate of whites. Nina Totenberg, Supreme Court Takes On Racial Discrimination In Jury Selection, NPR (Nov. 2, 2015), https://www.npr.org/2015/11/02/452898470/supreme-court-takes-on-racial-discrimination-in-jury-selection.
- In Houston County, Ala., prosecutors between 2005 and 2009 used their peremptory strikes to eliminate 80 percent of the blacks qualified for jury service in death penalty cases. Id.
The host further considers this particularly piercing question: “the assumption...is that having black people on the jury would hurt the prosecutor. Should we just assume that?” In addressing this inquiry, the podcast brings up a study done by The Capital Jury Project, that specifically looked at jury data from death penalty cases. After looing at data from 353 cases in 14 states, they found that white men are seven (7) times more likely to want the death penalty as blacks are. (Capital Jury Project Study)
In some respects, statistics regarding the inefficacy of the Batson rule at preventing race-based jury selection is huge: these are hard, undeniable numbers, asserting that race-based jury selection happens frequently and is detrimental on a vast scale. On the other hand, those attentive to this particular issue likely already know about America’s race-based jury selection problem, and perhaps Batson’s lacking role. In looking to Stevenson’s anecdote, it seems the ideal trial practices in a post-Batson world are those which recognize that parties in a particular litigation can not only be overtly bias, but also implicitly-biased. If a prosecutor is deliberately aiming to create an homogenous jury, a judge should recognize that their own willingness to condone that prosecutor’s reasoning as “race-neutral” may be subject to unconscious viewpoints that they themselves may keep and carry into their roles as judges.
Racially Diverse Juries Promote Self-monitoring Efforts During Jury Deliberation
Stevenson found that “interracial interactions produce anxiety among dominant group members, due to a fear of behaving prejudicially. In turn, anxiety promotes self-monitoring strategies during interracial interactions, reflecting attempts to avoid expressions prejudice. In the present research, we investigated the effects of jury racial composition (all White vs. racially mixed) on mock jury deliberations, expecting that interracial juries will trigger social anxiety, self-monitoring, and in turn, diminished communication with fellow jurors (i.e., word count). Testing these hypotheses, mock jurors’ online text responses ostensibly explaining their verdict preference to either a racially diverse or all-White jury were subjected to text analysis via Linguistic Inquiry Word Count (LIWC) software. Supporting hypotheses, mock jurors spoke significantly less (used fewer words), yet simultaneously spent more time developing their response in racially mixed juries than all-White juries.The effect of jury racial composition on word count was serially mediated by fewer social words, and in turn, greater use of first-person singular pronouns in racially diverse juries, likely reflecting increased social anxiety and self-monitoring efforts in interracial contexts.
There are several potential weaknesses of this study: first of all, a mock jury does not always generate a result accurate in real life. In addition, the mock jury deliberation occurred online, leaving open the question of whether the results of this experiment are applicable in face-to-face deliberations. Furthermore, it’s unclear how the researchers could make the participants aware of the race of the other fake jurors without letting them know the research is about race.
In this study, participants were presented with a murder and robbery case; further research is required to determine if the dynamic Stevenson found carries into other types of cases. Additional research could also clarify the other the other implications of diverse juries, and the effects of “watchdog syndrome” and tokenization.
Diversity’s Impact on the Quality of Jury Deliberations
The goal of this study to determine whether diverse juries engage higher quality deliberations than non-diverse juries. Researchers conducted mock trials to determine with varying the strength the evidence with diverse and non-diverse juries. They found that “participant race did not affect the quality of deliberation contributions, suggesting that diversity similarly affected participants of both races.” This finding is somewhat different than that of Sommers (2006) and also suggests that diversity’s impact goes beyond the watchdog effect (Fleming et al., 2005). Minorities benefiting from diversity does not rule out the possibility of the watchdog effect, but it does suggest that diversity might operate through other mechanisms as well. The results from the current study suggest that diversity might improve deliberations because of the heterogeneity of experiences and perspectives (Nemeth, 1986), rather than from a reduction of prejudice. It is also possible that diversity’s benefits operate differently for minority and majority group members.”
This is another mock jury study, thus may not be like the real thing. However, the jurors were presented with a video case (factually based on a real case) and actually deliberated in person, which creates a more realistic experience. In addition, the distinction between weak and strong evidence may not be clear. The question remains: can the participants distinguish between good evidence and bad evidence? Importantly, the study only used black and white participants. To make a jury diverse, researchers included a minimum of 2 non-whites. This might not be true diversity, even if there is a strong white majority. Also, sizes of jury not consistent. No less than four, no greater than seven, with the size varying each time. Finally, the jury was only given 45 minutes to deliberate before declaring it hung. This is unrealistic as real juries has much more time than this. Cutting deliberations short might’ve not shown the true results. The responses were coded for quality by research assistants, some of whom had knowledge of the hypotheses and theme of the study. This coding method could influence the results.
In contrast, Sommers found that “the quality of deliberations measures did provide some support for diversity’s benefit, with jurors in diverse juries providing more units with case facts and more sufficient arguments than jurors in non-diverse juries. Additionally, jurors in diverse juries were more likely to deliver counterarguments and discount evidence lacking in reliability than jurors in non-diverse juries. The finding of higher quality contributions from jurors deliberating in diverse juries is consistent with previous research examining jury deliberation content.” (Sommers, 2006).
Multiple studies suggest that Justice Marshall was right in Batson to assume that a jury's composition has the potential to affect trial outcomes. The investigation of Baldus et al. (2001) into capital juries in Philadelphia indicated that—consistent with the assumptions of the attorneys in the trials analyzed—racial composition was a reliable predictor of jury verdicts. The Bowers et al. (2001) analyses described above led to a similar conclusion, namely that the greater the proportion of Whites to Blacks on a capital jury, the more likely a Black defendant was to be sentenced to death, especially when the victim was White. Such patterns are not confined to the White/Black dichotomy: Daudistel, Hosch, Holmes, and Graves (1999) examined 317 nonfelony juries in Texas comprised of Whites and Latinos, and determined that majority‐White juries were harsher in their judgments of Latino defendants than were majority‐Latino juries.
Mock jury experiments have produced similar conclusions to these archival analyses. In one such study using college students, Bernard (1979) manipulated the race of the defendant in a trial video presented to 12‐person mock juries of differing racial compositions. Across conditions, White jurors were more likely to vote guilty than were Black jurors, particularly when the defendant was Black. Indeed, out of 10 mock juries examined, the only one to reach a unanimous guilty verdict in the study was also the only all‐White jury to view the trial of a Black defendant. Of course, one practical challenge faced by mock jury experiments is that the n for statistical analysis equals the number of groups in the study, not the number of individual participants, and the small sample size of the Bernard (1979) experiment prevented statistically reliable group‐level findings. See also Diversity and Citizen Participation: The Effect of Race on Juror Decision Making (“we find that Black defendants are less likely to be convicted by juries composed of a higher percentage of Black jurors and are more likely to be convicted by juries composed of a higher percentage of White and Hispanic jurors.”)
The notion that white jurors are more likely to convict Black defendants was certainly the case in Flowers: in his first three trials, where the jury was comprised of 12 white jurors or 11 white jurors and 1 Black juror, the jury returned a verdict of guilty with a sentence of death. However, once more Black jurors were included (5 in Flowers IV and 3 in Flowers V), the jury could not reach a consensus, resulting in a mistrial. Simply put, “[t]he racial demography of the first five Flowers juries correlates with the results of their deliberations.” Brief of Amici Curiae of the Magnolia Bar Association, et. al. at 22; this conclusion is consistent with the results of the Bradbury & Williams study.
The abstract explains that “this research examines the multiple effects of racial diversity on group decision making. Participants deliberated on the trial of a Black defendant as members of racially homogeneous or heterogeneous mock juries. Half of the groups were exposed to pretrial jury selection questions about racism and half were not. Deliberation analyses supported the prediction that diverse groups would exchange a wider range of information than all-White groups. This finding was not wholly attributable to the performance of Black participants, as Whites cited more case facts, made fewer errors, and were more amenable to discussion of racism when in diverse versus all-White groups. Even before discussion, Whites in diverse groups were more lenient toward the Black defendant, demonstrating that the effects of diversity do not occur solely through information exchange. The influence of jury selection questions extended previous findings that blatant racial issues at trial increase leniency toward a Black defendant.”
Again, this was only a mock jury and may not produce results accurate and/or applicable to real juries. However, participants were pulled from an active jury pool and placed into a realistic courtroom simulation. Still, a majority of participants were female. Also participants know they are in a study about jury decision making, which means they may not honestly answer the racial voir dire in order to remain in study and get paid.
Race, Diversity, and Jury Composition: Battering and Bolstering Legitimacy
In cases like Flowers, perception matters. Based on the historical analysis offered by the EJI, all-white juries passing judgment on cases involving Black lives leads to a decrease in community support for the criminal justice system. Equal Justice Initiative, Illegal Racial Discrimination in Jury Selection: A Continuing Legacy (2010) at 40-41. Conversely, people trust institutions they perceive to be fair, with racial balance as a factor in determining fairness. Id. The ABA explained, “a heterogeneous jury not only confirms that the system is fair and impartial for the defendant… but also assures the public at large… Conversely, a racially homogenous jury pool can have a harmful impact on the public’s perception of the justice system.”
While deliberations of racially or ethnically diverse juries can be enhanced by the wealth of diverse experience the jurors bring to them, they can suffer serious losses if jurors feel they are charged with representing a particular constituency in the jury room. In past high-profile cases involving racially charged crimes, the perception of an unjust system has driven people to violence. Equal Justice Initiative, Illegal Racial Discrimination in Jury Selection: A Continuing Legacy (2010). For example, people took to the streets in protest and, later, to riot after four white police officers were acquitted after beating Arthur McDuffie, a Black man from Dade County, Florida, the Governor’s committee convened to look into the matter found that the riots were a result of both “racism and the blacks’ perception of racism.” Id. at 38, emphasis added. The famous Los Angeles riots after the trial of the police officers who beat Rodney King in 1992 were fueled by both police violence against Black community members and by the makeup of the jury who acquitted the alleged perpetrators: ten jurors were white, one was Asian American, and one was Latino. Id. at 39. Since then, “[i]n Long Island, New York; Jena, Louisiana; Powhatan, Virginia; Panama City, Florida; and Milwaukee, Wisconsin, recent verdicts by all-white juries or by juries perceived as unrepresentative have triggered widespread unrest and outrage in poor and minority communities where serious concerns about the fairness and reliability of the justice system have emerged.” Id., internal citations omitted.
Mr. Flowers’ case hasn’t attracted much in the way of public demonstrations, but his case has caught the attention of a wide variety of media outlets, from the New York Times to the International Socialist Review. It was even featured on an episode of the popular podcast “In the Dark.” People who learn about Mr. Flowers from the news coverage that comes from a SCOTUS case and who see racially exclusive juries as problematic will likely see the justice system overall as less fair and legitimate; they may manifest this view through riots, protests, or silent erosion of their trust in the justice system.
Mapping the Racial Bias of the White Male Capital Juror
In Mapping the Racial Bias of the White Male Capital Juror, researchers found that “[w]hen they judged a black defendant—and essentially only then—they diverged significantly from their peers, both in terms of how they constructed the defendant's blameworthiness and motivation, and on whether they believed he deserved to be allowed to continue to live… the kinds of crimes that give rise to capital prosecutions not only provoke heightened levels of anger and fear among jurors but also are more likely to activate cultural stereotypes about minority ethnic and racial groups” and the more “stereotypically black” the crime or the defendant was perceived, the more likely D got a death sentence. These stereotypes even affect criminal justice professionals’ perception of the sentence defendants should get.” It cites a study showing that “death‐qualified jury pools are disproportionately white, male, older, and more religiously and politically conservative,” and citesstudies showing that “support for the death penalty among whites is highly correlated with measures of anti‐black racial prejudice and stereotyping.” This finding tracks onto the juries that Mr. Flowers faced in his first three trials that were all-white or nearly all-white, all of whom sentenced him to death.
Jury instructions in capital cases are also typically difficult to understand, which also activates use of racial bias in decision making. In addition, empathy is important to mitigation, and jurors feel less empathetic to people they perceive as different. The white male jurors in this study judged a black defendant whom they tended to view as driven by the defendant's own depraved predispositions, and as someone whose criminal behavior they were reluctant to interpret as the product of the defendant's dysfunctional and psychologically damaging background. As a consequence, these jurors gave significantly less weight to the mitigation that had been offered in order to place the defendant's behavior in a broader and more sympathetic context. White male jurors also saw the black defendant as less redeemable, in that he was viewed as more cold‐hearted and remorseless, and as someone who would be more likely to re‐offend if given the chance. Furthermore, these effects were evident despite the fact that White male participants had significantly higher comprehension of the capital jury sentencing instructions, something our prior research indicated should have, if anything, moderated racially disparate outcomes and suppressed the between group differences.”
The study went on to explain “a concentration of white male jurors sitting in a black defendant's penalty trial appears to undermine the jury's willingness to consider the case for mitigation. Consequently, ensuring some representation for nonwhite capital jurors may not be sufficient to deliver a truly fair, diverse, and impartial jury. Because the process of minority exclusion is a cumulative one—resulting from the way in which venire pools are constructed, jury eligibility is determined, and death qualification and jury selection are conducted—there is still a high probability that the juries that are finally impaneled to hear and decide a capital case will be susceptible to the kind of white male juror bias that we have uncovered in this study.” The fact that racially inclusive juries produced mistrials, not acquittals, suggests that Lynch & Henay are right that white male juror bias can still impact diversified death-penalty juries, like those in Flowers IV and V.
Conclusion
Social science supports the underlying assumption in Batson and its progeny that lack of jury diversity disadvantages defendants of color. The all-white and majority-white juries in Flowers had an effect on the outcome. This effect was to Mr. Flower’s detriment, and may have contributed to his capital sentencing. The Supreme Court should rule with the understanding that any Batson violation aversely impacted the Petitioner in Flowers v. MI.